Can a Resurgence in Labor Unions Help Working Women, With or Without the PRO Act?

Happy International Women's Day!

First came the wave of teacher strikes led by women fighting the devaluing of their work, then Google employees walked out in protest of its handling of sexual harassment and (later) formed the Alphabet Workers Union, and now racial justice is a central theme as Amazon warehouse workers in Alabama vote on whether to unionize. In between have been innumerable other actions of protest, solidarity, and collective action spurred by concerns with racial justice, the she-cession and other pandemic-induced inequalities, and feelings of powerlessness.

Despite numerous obstacles, this newfound energy could lead to increased unionization. The prospects of a resurgence in labor unions would be dramatically magnified if Congress passes the Protecting the Right to Organize (PRO) Act. The PRO Act brings together pieces of failed legislation over the past three decades and would drastically re-shape labor law by removing numerous employer advantages over unions and workers, making it easier for workers to form unions and giving them greater bargaining power. Greater unionization could result in important benefits for working women. Here’s why.

Boosting Women’s Pay

Perhaps the most obvious thing that unions typically do is negotiate for higher pay and better benefits. Recent research indicates that, on average, unionized women earn 12 percent more than similar nonunion women in the U.S. private sector. Unionization appears to increase pay for white women and Black women to a similar degree. So if more women become unionized, we’d expect their pay, on average, to increase. The union wage premium for women could even conceivably increase with the passage of the PRO Act because of its potential to increase union power. There could also be spillover effects that increase the pay of other working women because the threat of unionization can cause employers to preemptively increase pay.

Some things that labor unions commonly do—such as raise pay more aggressively among lower-paid workers, negotiate standardized pay rates and strong grievance procedures, and combat pay secrecy—could also close the gender pay gap. Indeed, when Wisconsin weakened teacher unions and allowed greater individual wage-setting, the gender pay gap increased. But systematically closing the gender pay gap requires greater intentionality among unions because men have a higher union pay advantage than women in the U.S. private sector, so increased unionization could benefit men even more than women without a more explicit focus on the gender pay gap.

Benefits Workers Can Use

Union contracts typically address wide-ranging issues relating to benefits, scheduling, and time off which are beneficial for individual and community well-being. Many of these can be particularly beneficial for working mothers trying to juggle multiple roles, though research paints a mixed picture with union members more likely to have stable hours but also more likely to have nonstandard schedules. Research from the UK highlights three ways in which unions help workers balance work and family: bargaining for policies that directly help working mothers, such as paid parental leave, job sharing or onsite child care; reducing the frequency of excessively long working hours, and fighting the typical manager’s belief that balancing work and family is solely the worker’s responsibility.

But bargaining for policies is not enough; workers need to be able to actually use them. This dynamic is captured by the four A’s: availability, awareness, affordability, and assurance. In other words, for a new mother, for example, to take paid parental leave: 1) the policy needs to be available, 2) if available, the worker needs to be aware of it, 3) even if aware of an existing policy, the worker needs to believe she can afford a leave, and 4) even if affordable, the worker needs to have assurances against negative consequences that might result from taking a leave (e.g., missing out on a promotion).

So beyond negotiating for better policies (availability), unions can also significantly help women use these policies—they can help spread awareness through newsletters, one-to-one interactions, and the like; make leaves more affordable through higher wages and better insurance coverage; and combat reprisals through bargaining, grievance procedures, and other means. In my own research, I label this the “facilitation effect” of labor unions. Through these various channels, union-represented new mothers are more than 15 percent more likely to use paid maternity leave than are comparable non-union mothers.

This facilitation role of labor unions can also help working women navigate the complex maze of federal, state, and local public policies on work. For example, in the first years after the passage of the Family and Medical Leave Act (FMLA), hourly unionized workers were much more likely than others to have heard about the FMLA, and were significantly less worried about losing their seniority or their job if taking a family or medical leave. Eligible workers are more likely to receive unemployment insurance benefits if they were in union jobs, and unions help enforce workplace safety and reduce other labor rights violations. This assistance is likely particularly important for marginalized workers who otherwise don’t have the resources and connections to counter employer transgressions.

Ripple Effects on the Policy Environment

Unions also lobby for legislative protections for workers. The labor movement supports the $15 minimum wage that was controversially excluded from the federal stimulus bill last week. An increase in the federal minimum wage would particularly benefit women, workers of color, and especially women of color (though these workers are also disproportionately excluded from coverage). Passage of the PRO Act could further boost union influence that results in more favorable public policies for workers and working women. Right-to-work laws that allow union-represented workers to not pay union dues or fees weaken unions financially and politically, resulting in more conservative lawmakers and lawmaking. The PRO Act would abolish right-to-work laws, perhaps prompting the reverse cycle.

At an individual level, labor unions help equip members with advocacy skills and norms that translate into greater political and civic engagement. If more women are represented by unions in the future, these empowerment skills and norms could potentially translate to other areas of their lives, too, such as running for political office or negotiating the allocation of household responsibilities.

Putting the PRO Act in Context

A resurgence in labor unions, perhaps supported by the PRO Act, could have important benefits for working women—but there are multiple qualifications. What happens in any particular bargaining unit can reflect contested political dynamics that are not guaranteed to prioritize the concerns of working women or of workers with other identities. Also, even if the PRO Act is enacted, increased unionized would still require workers to successfully organize.

Additionally, the PRO Act would only apply to the private sector, where less than 6 percent of women are unionized; 60 percent of women union members work in the public sector, where most are subject to state-level regulation which is often unfavorable in conservative states. The PRO Act also fails to address labor law’s racist and sexist roots that excluded agricultural and domestic service workers from its protections.

As good as the PRO Act might be for some women workers, it’s only one piece of a broader set of policy interventions and new norms that we need to fully respect the dignity of labor.

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Originally published in the Gender Policy Report.

Union-buster Steve visits Superstore, But Maybe Not After the PRO Act

The NBC comedy Superstore is set in one store of the fictitious big-box retail chain Cloud 9. The main characters are all store employees, and refreshingly, it frequently reveals the injustices that many workers face, such as the difficulty supporting a family on low wages, a lack of parental leave, inadequate health insurance, and many other indignities. These are all rooted in a fundamental imbalance between “corporate” and the realities of work on the shop floor (pun intended), and the prioritization of corporate interests. Appropriately, a repeated theme is corporate’s fear of worker solidarity, including corporate leaders going so far as triggering an ICE raid to derail the workers’ push for a union.

In the “Labor” episode, workers call corporate to ask about paid maternity leave, and after then mention the words “union” and “strike” in passing, corporate immediately escalates the situation, and reminiscent of stories heard about Walmart, the next day the workers are treated to a visit by Steve, a union-busting labor relations consultant:

Because it’s such a great portrayal of the stereotypical anti-union messages, I’ve reconstructed Steve’s whiteboard:

First there is the “unions are unnecessary” theme. Cloud 9 is pro-employee and has an open door policy. Then there is the “unions are bad” theme—the negative reference to “union bosses” (and the implication of unions as outsiders), unions as raising prices (and thus threatening the employees’ jobs), and the always-present mention of union dues (don’t you want to keep your money?). The prospect of having to strike as well as a union’s inability to guarantee any improvements are additional common anti-union themes not included here. And then there is the attempt to portray workers who support unions as delusional or misguided—they’ve been lied to, pressured, bribed, swayed by outsiders, or just don’t really understand. Note the paternalism inherent in such statements. 

Underscoring the realism of this fictional portrayal, note many of the same themes in this message sent out by CorePower Yoga in response to its instructors talking about unionizing:

But returning to Steve’s visit to Cloud 9 store #1217, being forced to listen to your employer’s anti-union presentation is called “captive audience speech”, and in the United States this is legal unless it’s within 24 hours of a certification election or contains threats or promises. This has long been controversial because unions do not have the same ability to present their message to the workers. But the Protecting the Right to Organize (PRO) Act—passed by the U.S. House of Representatives in 2020, but not the Senate, and undoubtedly primed for reconsideration in 2021—would change this situation and make captive audience meetings illegal. If Steve is an outside consultant, the PRO Act would also require Cloud 9 to disclose its relationships with labor relations consultants. And the PRO Act would make many other changes, too, amounting to the most significant change to private sector labor law since the 1940s. This is definitely something to watch in 2021—along with Superstore of course! 

Is the NLRA Racist?

One way to think more deeply about issues of race in work and labor relations is to ask whether the National Labor Relations Act (NLRA) is racist. The NLRA was enacted in 1935 as part of the New Deal, and protects private sector workers’ rights to organize into labor unions and collectively bargain.

At its core, the NLRA is about workers, full stop, and the language of the NLRA is colorblind. Moreover, many Black workers have benefited from unionization. For at least the past 20 years, Black workers have had the highest unionization rates compared to Asian, Hispanic, and white workers, and for most of the postwar period, the positive effect of labor unions on household income has been stronger for people of color. Black workers also benefit from grievance procedures, standardized hiring and firing practices, and other policies that can help mitigate discriminatory practices. The AFL-CIO now explicitly champions racial justice.  

But it hasn’t always been this way. Like many other aspects of U.S. society, the labor movement has a mixed historical record with respect to race and discrimination. Historically, some unions advocated for inclusion while others were racist. Railroad and craft unions in the first decades of the 20^th century were particularly known for their racist, anti-Black stances, and in some cases there were still separate, segregated Black and white locals and restrictive membership policies in the 1960s.

White union leaders and members are ultimately responsible for this racist behavior, but there are several ways in which the NLRA systematically disadvantages Black workers relative to white workers. The NLRA allows unions to be the workers’ exclusive representative when a majority of workers favor this. So a majority of workers can significantly influence terms and conditions of employees for the rest. But in spite of NAACP lobbying, the NLRA did not contain an anti-discrimination requirement for unions, and the judicially-constructed duty of fair representation was only a weak substitute in the face of prejudiced union leaders and co-workers. The NLRA, therefore, gave unions significant power over workers—powers that were even stronger for the first decade in which closed shops (allowing unions to control access to jobs) were legal—but fell short of equally empowering Black workers. Indeed, in the 1940s and 1950s, the agency established by the NLRA to enforce it—the National Labor Relations Board (NLRB)—repeatedly allowed segregated locals and trivialized racist speech by unions during organizing drives. The courts were no better. For example, in 1959 the Supreme Court refused to hear an appeal of Oliphant v. Brotherhood of Locomotive Firemen & Enginemen in which the U.S. Court of Appeals allowed the union to continue banning Black workers from becoming members. It was not until the passage of the Civil Rights Act in 1964 that such discriminatory practices would be rendered illegal.

The lack of an explicit anti-discrimination provision in the NLRA is often attributed to the need for Senator Wagner and other early NLRA supporters to have the support of southern Democrats in Congress in order to get the NLRA passed. Unions were not very strong in the south, so as long as Jim Crow laws and norms that institutionalized and maintained white superiority were not threatened, then southern Democrats would support the NLRA. The preservation of Jim Crow in the south also led to another feature of the NLRA that significantly harmed Black workers—the exclusion of domestic and agricultural workers from the NLRA’s protections. These were the largest categories of employment for Black workers in the south, and their exclusion perpetuated the continued subjugation of them. 

The intentional perpetuation of racial inequality during the 1930s and 1940s becomes even more apparent when looking beyond the NLRA to other federal policies of that era. The Fair Labor Standards Act (minimum wages and overtime premiums), the Social Security Act, unemployment insurance, the GI Bill, and other programs either excluded agricultural and domestic workers or created programs that were ultimately administered locally, thus allowing for subtle and not-so-subtle discrimination in the application of these programs. As argued by Ira Katznelson, “by not including the occupations in which African Americans worked, and by organizing racist patterns of administration, New Deal policies for Social Security, social welfare, and labor market programs restricted Black prospects while providing positive economic reinforcement for the great majority of white citizens” which widened economic disparity; or as he captures with the title of his book: this was when affirmative action was white. Federal housing policy resulted in the same pattern of discrimination as the Federal Housing Administration used biased decisions about mortgages to segregate Black families in urban areas while subsidizing white home ownership in the suburbs, which widened racial wealth inequality.

Returning to the NLRA specifically, after the end of World War II, unionization of southern workers represented a greater threat than 10 years earlier, so to maintain the south’s racial order, southern Democrats in Congress changed course and teamed with Republicans to pass the Taft-Hartley amendments to the NLRA. The changes to the NLRA made it more difficult to organize workers and contributed to the failure of the labor movement’s Operation Dixie southern organizing campaign. The Taft-Hartley Act also allowed states to pass right-to-work laws prohibiting unions from charging workers dues and representation fees. Right-to-work laws have racist origins in that they were created to try to prevent the creation of solidarity among white and Black workers in the south. Indeed, a vocal supporter of right-to-work laws in the 1940s allegedly inflamed opposition to multiracial labor unions by saying that if left unchecked, “white women and white men will be forced into organizations with Black African apes whom they will have to call ‘brother’ or lose their jobs.”  

There are various ways, then, in which the NLRA—along with other New Deal and immediate postwar legislation—institutionalized and magnified existing power differences between Black workers and white workers in order to perpetuate patterns of inequality based on race. In other words, aspects of the NLRA contributed to institutional racism. In fact, the overrepresentation of people of color in the lowest-paid agricultural, domestic, and service occupations continues to this day. At the same time, the overall picture is complex. Many Black workers have benefited from the NLRA’s protections of unionization, and many whites have been excluded because they, too, work in domestic and agricultural occupations. Many provisions of the NLRA or subsequent legal interpretations have been shaped by ideologies pertaining to neoliberalism or the democratization of work rather than racial hierarchies. And workers of all races and ethnicities could benefit from labor law reform that strengthens the NLRA and other labor policies. But maybe not equally. And therein lies the issue—work isn’t always (only) about race, but we certainly shouldn’t be blind to the complicated ways in which race and labor intersect.

And Now for the Biden Labor Plan...Laudable But Still a Narrow View of High-Stakes, Worker Voice

Last month’s post was prompted by the release of  the labor plans by the Bernie Sanders and Elizabeth Warren campaigns. A couple weeks later, the Biden campaign released its labor plan (“The Biden Plan for Strengthening Worker Organizing, Collective Bargaining, and Unions”). Like the Sanders and Warren plans, the Biden plan contains an embrace of the traditional reforms to the National Labor Relations Act that you’d expect from a Democratic presidential candidate:

• Card check certification elections
• Ban on captive audience meetings
• Stronger penalties for labor law violators
• First contract arbitration
• Ban on permanent strike replacements
• An end to right-to-work laws allowing represented worker to free-ride by not paying union dues
• Extending coverage to domestic and agricultural workers.

The Biden plan also addresses some problematic areas that have emerged more recently, including:

• Restoring bargaining (and other) rights for federal workers
• Giving franchisors joint employer status (and thus bringing them to the bargaining table)
• Providing federal labor law protections to state and local government employees
• Giving independent contractors the right to unionize and bargain. 

Beyond labor law, the Biden plan also seeks to increase the national minimum wage, strengthen prevailing wage standards, ban most non-compete agreements and mandatory arbitration, give gig economy workers the legal status of employees, and remove harmful occupational licensing requirements. Maybe I’ve missed it, but I think this very last one is unique among the candidates’ plans, and I trust that my colleague Morris Kleiner will be pleased to see this issue recognized as he’s been the primary researcher in this area for years.

Except for the occupational licensing part, the elements of the Biden plan are pretty standard fare. In some respects, that’s not necessarily bad. These are all important issues, and that Biden is not unique in addressing them can be seen as a broad acceptance (on the left) of the problem areas. But as I argued last month with respect to the Sanders and Warren plans, there seems to be an unstated premise that workers want union representation but are unable to form unions because they are excluded from protections (e.g., gig workers) or because the election process favors employers. Research consistently shows that many nonunion workers—maybe even half of them—do indeed want union representation. But the same research also reveals that many others want other forms of voice.

The ”workers want to unionize but cannot” premise also overlooks the fact that the U.S. system is essentially all or nothing. You either have union representation in which case a union bargains for you over all terms and conditions of employment, or you do not and collective voice is probably completely lacking. All of the candidates’ plans seem to miss opportunities to promote localized, participatory forms of worker voice such as mandatory safety and health committees in which workers can gain firsthand experience with collective voice, which can grow into a desire for stronger forms of involvement and representation. Others have labeled this “training wheels voice,” and this should be included in plans to improve workers’ rights.

The all or nothing nature of the U.S. labor system also makes the certification process a high stakes affair for workers and managers. This is partly because of the big jump from no collective voice to the union as the exclusive representative over all terms and conditions of employment, but also because it can be difficult to remove an unresponsive union. So a bolder change would be to make certification elections an automatic, regular occurrence for all workers. As outlined by Samuel Estreicher,

“Every two years (unless the union achieved a collective bargaining agreement, in which case every three years) the employees in the unit, after an initial minimal required showing of interest [e.g., 5-10% of workers], would have an opportunity to vote in a secret ballot whether they wish to continue the union’s representation, select another organization, or have no union representation at all. Petitioning labor organizations and employers would be required to share certain specified information, in electronic form, with the voting employees.” 

Before this is dismissed as crazy, note that Republican legislatures in Wisconsin and Iowa have enacted requirements for regular recertification elections. If unionized workplaces should have to recertify in order to confirm that a majority of workers still support unionization, then the same logic should apply to nonunion workplaces to regularly determine what the majority support. The democratic process shouldn’t choose sides.

Indeed, having regular elections would bring certification elections into line with political elections, and would not only perhaps make it easier to gain certification but also to get rid of an ineffective or undesirable union. In other words, it might be better to have an “easy in, easy out” system for determining union representation and allowing for experimentation with different forms of collective voice. A risk is that conflict over unionization becomes a regular occurrence, but the hope would be that by regularizing this and reducing the stakes, the worst of the current process could be avoided. Moreover, if unionization became more widespread, this could reduce managerial opposition by weakening the perception of unionization as a significant competitive disadvantage.

Circling back to the Biden plan, it also uniquely calls for the creation of “a cabinet-level working group that will solely focus on promoting union organizing and collective bargaining in the public and private sectors.” Intriguing…but I would advocate for a broader scope that examines collective voice, including but not limited to collective bargaining.

(Incomplete) Reflections on the Sanders and Warren Labor Plans

Bernie Sanders ("The Workplace Democracy Plan") and Elizabeth Warren ("Empowering American Workers and Raising Wages") have now both released labor plans as part of their presidential election campaigns. If enacted, each ambitious plan would bring the deepest and most far-ranging reforms to labor law since…well, ever. Both plans include provisions for union certification based on card checks followed by first contract arbitration when needed, reducing employer interference in union drives, banning permanent strike replacements and right-to-work laws, and extending protections for unionization to public sector workers, independent contractors, graduate students, and others who have been excluded. These are all sorely needed reforms, and it's great to see labor law getting serious attention.

Both plans also call for sector bargaining in which wages and other basic employment standards would be established at an industry level, as is often the case in Europe. But European countries are small, have weaker links between being a union member and having union representation (a link that is at the heart of the U.S. system), and have stronger employer associations, traditions of social dialog, and other supporting institutions. Technically, sector bargaining isn’t prohibited under existing U.S. labor law (and has occurred, as in the steel industry in the 1950s), but it requires everyone to be unionized and employers to agree to it. So to make this a reality, policy change is necessary. It’s very difficult to see how this would be imported to the United States on a large scale. Philosophically, will workers see this as a step towards workplace democracy when unions they haven’t supported are speaking for them? Practically, how will sectors be determined along with representatives of labor and business in each? Legally, how will sector bargaining and agreements be enforced? I’m all for learning from international experience and importing good ideas, but I think this is a stretch in this particular case. In fact, Germany represents a classic case of strong sector bargaining, but it recently established a minimum wage because of the decline of sector bargaining. So while I understand the rationale for raising wages and standards on a broad rather than piecemeal basis, and for taking wages out of competition, I'm skeptical that sector bargaining can be a U.S. reality even if there was the political will. Maybe I'm not alone--while Sanders plan actually calls for “a sectoral collective bargaining system with wage boards”—so in other words, wage boards which are more akin to reforming minimum wages than actual sector bargaining.

Both plans also seem to have an underlying mindset that workers are ripe for unionization, but are prevented from doing so either because they are excluded from protections (e.g., gig workers) or the election process favors employers (e.g., greater access to employers, minimal penalties for firing union supporters). This is undoubtedly true. Research consistently shows that many nonunion workers want a union—maybe as high as 50 percent. But only partly true: this same research also shows that others want more voice in other forms. As such, both plans seem to miss opportunities to promote localized, participatory forms of worker voice. Specific possibilities here include mandatory safety and health committees and works councils. As workers experience voice directly in their own workplace, they can see its benefits, and push for stronger forms of involvement and representation. This might even lead to majority support for a traditional union with full-fledged bargaining rights. In this way, others have labeled this “training wheels voice.” I would add training wheels voice to the Sanders and Warren plans.

Stepping away from the areas connected to labor relations and collective bargaining, the Warren plan goes much further than the Sanders plan. For example, the Warren plan would prohibit non-compete clauses and “no-poach” agreements which limit worker mobility and thereby suppress wages and benefits, and would also ban forced arbitration agreements. The Warren plan also addresses worker scheduling, discrimination, and labor policy enforcement issues, and also provides for worker representative on corporate boards of directors. There are sound bases for all of these proposals. But one area where the Sanders plan goes beyond the Warren plan is in ending at-will employment by prohibiting workers from being fired when there isn’t just cause.

Ten years ago in our book Invisible Hands, Invisible Objectives: Bringing Workplace Law and Public Policy Into Focus, Steve Befort and I advocated for an “American Good Cause Termination Act” in which employees can only be fired if there is “good cause” for such an action. A just cause standard is nearly universal in U.S. union contracts and CEO contracts (and has also been in effect in Montana since 1987). Decades worth of decisions by labor arbitrators applying this standard have created a reasonably coherent framework for determining if an employer has good cause to discharge an employee. This proposed universal good cause standard does not prevent employers from terminating employees because of substandard performance or changes in the direction of the business. To balance employer and employee interests, we propose that a U.S. good cause standard be remedied by a maximum of one year’s back pay, except in cases of unlawful discrimination in which case double or treble damage awards would be allowed. It is difficult to argue that U.S. employers would be at a competitive disadvantage in the global economy because the United States virtually stands alone in failing to a provide general statutory protection against unjust terminations.

The benefits of an American Good Cause Termination Act would be widespread. Social justice (equity) is served by outlawing both bad and irrelevant reasons for dismissing employees. Other employment policies would also be enhanced as workers would have greater protections for exercising their rights, such as by filing a valid workers’ compensation claim or taking a family or medical leave. Also, employee voice would be facilitated because employee free speech, autonomy, and unionization would be protected as terminations in retaliation for pursuing these activities would not possess good cause unless they interfered with job performance. Efficiency could even be promoted by reducing the regulatory burdens of the current system--including multiple forums and an expensive litigious approach--with a streamlined system that is quicker and cheaper. So this is an omission from the Warren plan that could help support the broader objectives of that plan, and I think it merits serious consideration.

Among many other things that Steve and I proposed (some of which overlap with the Sanders and/or Warren plans), I will highlight just one that is missing from both which could be the easiest of all to implement: mandatory disclosure of employment terms and conditions. Workers simultaneously over-estimate the extent to which they can only be fired for a good reason and under-appreciate the availability of other benefits (e.g., family leave) or protections (e.g., NLRA protections of collective voice). The employment relationship would work better if employees better understood their actual terms and conditions of employment. As Richard Edwards noted many years ago, lenders are required to disclose accurate interest rates for loans and manufacturers must reveal the ingredients of food products. Given the importance of employment to individuals, disclosure of employment terms also should be required. This should include wage and benefit information, leave policies, dismissal policies, and descriptions of their rights under the law. At-will employees, for example, should be told that they can be dismissed for any reason. Subject to relevant laws, employers would still be free to unilaterally determine and change these policies, but those changes should be transparent to employees.

This proposal for mandatory disclosure of the terms and conditions of employment has international precedents. China requires written contracts for employees that specify wages and benefits, the length of the working day, vacation policies, disciplinary policies, and methods for changing, renewing, or terminating the contract. Closer to our proposal are European Union requirements that employers must provide written notices to employees detailing key elements, including wage payments, leave policies, and the expected duration of employment for temporary employees. These requirements date back to 1991, and were just renewed in 2019. Who can be opposed to greater accuracy and transparency?

In closing, as someone who advocated for broad-scale policy reform 10 years ago, it’s great to see such comprehensive plans being proposed and debated. Of course the path to actual enactment is a lengthy and uncertain one. But ideas are important for highlighting the deficiencies and imbalances in the current system, and for starting to shape new norms and expectations that can one day lead to substantive reform and ultimately, employment with a human face.

The Evolution of NAFTA and Labor Rights

Debates continue to rage as to whether the United States should ratify the United States-Mexico-Canada Agreement (USMCA), also known as NAFTA 2.0. Lost among these debates is an interesting progression from NAFTA 1.0 to 2.0 with respect to labor rights. NAFTA was originally negotiated without any labor provisions, but labor and environmental side agreements were added to facilitate ratification, and NAFTA went into effect in 1994. The labor side agreement specified 11 guiding principles that the three countries commit to promote—including union activity, nondiscrimination, equal pay, minimum wages, and workplace safety—but the emphasis is on cooperation to promote compliance with existing domestic laws. No new laws were required, and when there are disputes, there is a process of public consultation without significant enforcement powers. Violators would be named and shamed, but not sanctioned.

In subsequent U.S. free trade agreements, there has been an evolution towards requirements not only to enforce domestic laws but also to abide by the International Labor Organization’s core labor standards. Moreover, the labor provisions of post-NAFTA U.S. free trade agreements have upgraded the labor provisions from a side agreement to a labor chapter within the free trade agreement. This is now the case for the pending USMCA (NAFTA 2.0). Indeed, Mexico has just enacted labor law reforms to promote independent unions in order to comply with labor standards under NAFTA 2.0.

That labor standards are now included as labor chapters in U.S. free trade agreements rather than as side agreements is significant because it means that alleged violations of labor standards are addressed using the same dispute resolution procedures as trade disputes, and includes the possibility of monetary penalties. Complaints (called “submissions”) alleging a labor violation are submitted to the Office of Trade and Labor Affairs within the U.S. Department of Labor which then investigates. If consultation and dialogue steps fail to address a violation, a panel hearing can be held just as for commercial violations, and a ruling issued. In this respect, U.S. free trade agreements have stronger labor standard requirements than those negotiated among many other countries where dispute resolution is limited to dialogue and cooperation.

This is not to say that concerns with this evolving approach are unwarranted. Only one submission under other U.S. free trade agreements has reached the panel hearing stage. This case alleged that Guatemala failed to effectively enforce its labor laws in violation of the Dominican Republic–Central America Free Trade Agreement (CAFTA-DR). It took nine years for this allegation to work its way through the process, and in spite of a finding that Guatemala failed to effectively enforce its labor laws, the panel ruled that there was not enough of a connection across the violations to find a sustained or recurring course of action or inaction that affected trade. So this is hardly a success story for those concerned with labor rights.

Nevertheless, it’s useful to understand the evolution of labor rights provisions under U.S. free trade agreements. Progress might be slow and imperfect, but there is an interesting trend toward greater consideration of labor rights. And perhaps the most lasting effects do not come from actual rulings, but from the linkages created by the transnational consultation and dispute resolution procedures. Unlike protests against the World Trade Organization (WTO) in which labor is an outsider, the NAFTA side agreement and the more recent labor chapters provide a legitimate mechanism for labor to express and seek resolution of grievances, and also specify procedural rules that require cross-border contact. This provides the basis for unions across different countries to cooperate in repeated, concrete ways, which in turn can create enduring, transnational union relationships. Indeed, led by the Canadian labor movement, NAFTA caused a shift in the attitudes of the Canadian and U.S. labor movements that went from seeing Mexican workers as “foreign workers” who are the problem—attitudes often tinged with racist stereotypes—to seeing them as partners in their struggle. These attitudinal changes go beyond NAFTA—the U.S. labor movement now openly embraces organizing immigrant workers and the AFL-CIO supports comprehensive immigration reform that includes a pathway to citizenship for undocumented workers.

So further evolution in free trade agreements that give legitimacy to the importance of workers' rights and spur transnational labor solidarity might have broader effects than what's actually caused by the specific details of a particular trade agreement's provisions.

After Epic Systems, It’s Striking What’s Left for Workers…Literally!

Suppose you think that your employer is engaging in wage theft by intentionally misclassifying you as exempt from overtime (or substitute many other possible grievances that are shared by co-workers, such as being misclassified as contractors, enduring systematic discrimination or harassment, or being forced to work off the clock). In the absence of a union, what alternatives do you have?

One classic response is “if you don’t like your job, quit.” But this is far from satisfactory. This puts most of the burden on the employee. Even if it is possible to find a similar job relatively easily (which isn’t always the case), there are still significant adjustment costs like switching health insurance providers. Indeed, employers have increasingly forced workers to sign non-compete agreements which makes it even harder for workers to find comparable new jobs. Moreover, if the worker has been denied something they are entitled to, like overtime, then quitting doesn’t make them whole. And if an employer has broken the law, quitting doesn’t hold it accountable, nor does it provide a deterrent against other violators. So we shouldn’t force workers to rely on quitting.

Instead of quitting, perhaps a worker can complain internally. But let’s be realistic. If an organization is intentionally misclassifying workers, engaging in systematic gender or racial discrimination, or other unethical practices, it’s hardly likely to respond positively to an internal complaint.

So, of course, the natural venue for trying to redress potential legal violations is to file a lawsuit. But over half of the U.S. workforce is now forced to sign a mandatory arbitration agreement. This prevents them from filing a lawsuit. To be fair, arbitration could have some advantages for employees, primarily in terms of being able to access a more affordable venue for resolving this issue. But there are potential drawbacks because employers have the resources and expertise to dominate the arbitration process. In fact, it’s the employer that determines the structure of the process that will be used. Within some modest boundaries, the employer can structure the process as it desires, and presumably does so in ways that serves its own interests, not those of aggrieved workers. Moreover, note that the employee has to sign away his or her rights to file a lawsuit in very unfair circumstances: they won’t get the job if they don’t sign, they haven’t yet experienced the workplace firsthand, and they are waiving their rights far in advance of any grievance materializing so they don’t really know what they are giving away or signing up for.

Because of these disadvantages, some workers have filed class action lawsuits in order to get to their case into court, even when seemingly prevented by a mandatory arbitration provision. For example, employees at Epic Systems, a Wisconsin-based health IT company, filed a class action lawsuit accusing Epic Systems of denying them overtime due to intentional misclassification. Even though they had previously been required to agree to submit wage-and-hour claims to individual arbitration, they argued that filing a class action lawsuit is a form of collective activity protected by the National Labor Relations Act (NLRA). Indeed, this argument was successful in the lower courts.

But Epic Systems appealed to the Supreme Court, which then ruled earlier this year that the arbitration agreements must be enforced. So employees who are forced to sign individual arbitration agreements—far in advance of any actual dispute—are prevented from any kind of legal action. Rather, they must seek justice in individual arbitration hearings. Low-paid workers are unlikely to be able to afford an attorney, and broad-based violations are less likely to come to light. And since the employer but not workers are repeat players in arbitration, arbitrators have incentives to favor employers.

So what’s left for workers? Well, they could try to unionize but that’s very time consuming. So perhaps ironically, it’s striking what’s left after the Epic Systems ruling. Yes, I mean that literally. Employees who face a similar grievance such as misclassification or discrimination can go on strike. The NLRA seeks to protect workers who band together to enhance their collective power and voice in determining wages, hours, and terms and conditions of employment. This is because the NLRA is premised on a belief that the employment relationship is an unequal one, and it will work better for all if workers act together rather than individually to better balance corporate power.

So collective activities to have a voice over wages, hours, and terms and conditions of employment are protected, which means that workers cannot be discharged, disciplined, or other discriminated against for engaging in these activities. When multiple workers feel aggrieved by work-related issues, they should remember these protections. If things are so bad that workers are ready to quit, they should instead think about going on strike. That is, as a group, they can collectively refuse to work until their grievances are resolved. The company doesn’t have to pay them or give into their demands. But it cannot fire them for this protected activity.

When there are mandatory arbitration agreements in place, the employer would likely claim that these would trump the right to strike. So we’d have a similar legal controversy as faced in Epic Systems. But unlike class action lawsuits, going on strike is clearly protected by the NLRA so I would expect a different legal outcome that allows striking even in the presence of an arbitration agreement (though I’m not a lawyer…so maybe I’m missing something).

In any case, going on strike isn’t ideal. Workers lose their pay and they can be replaced. Business and customers suffer, too. In fact, one of the major goals of the NLRA is to promote labor peace, along with a more balanced and therefore healthier employment relationship. Rulings like Epic Systems and Janus v. AFSCME, push us in exactly the opposite direction. So what may look like victories for employers might actually turn out differently in the longer run if the quality of employment relationship deteriorates and workers become more desperate. Those championing these rulings should be careful for what they wish for. Instead, our Labor Day 2018 wish should be for a healthier balance in the world of work.

What Happens in the Aftermath of the Janus Ruling?

In 2018, all eyes in the labor relations community were focused on the Supreme Court in anticipation of its ruling in Janus v. American Federation of State, County, and Municipal Employees, Council 31. Workers who are represented by a labor union cannot be forced to join a union and pay full dues, but in the absence of a right-to-work law, it has been possible to require them to pay an agency fee (equivalently, “fair-share fee”) to cover the costs of representing them. The question in Janus was whether mandatory agency fee arrangements in the public sector violate an individual’s free speech rights. This is only a question relevant to the public sector because the Constitution only prohibits the government from infringing on speech—there are no prohibitions against a private sector employer limiting an employee’s speech.

The free-speech argument against public sector agency fees is that mandating these payments means that a governmental body is forcing someone who does not belong to the union to subsidize the speech of others (the union) who they don’t agree with. Note carefully that this requires seeing public sector collective bargaining as rising to the level of public expression that enjoys constitutional protections. Opposed to this view is a counter-argument based on seeing collective bargaining as part of the employment relationship, not part of public discourse. So if states want to allow agency fees and prevent free-riding, then this should continue to be within their authority as regulators of the public sector employment relationship, consistent with other precedents in which public sector employees do not have free speech rights when speaking as workers rather than citizens.

When the Janus decision was issued last week, no one was surprised by the verdict: five conservative justices outnumbered four liberal justices in declaring that mandatory  agency fee arrangements in the public sector are unconstitutional free speech violations. This makes the entire U.S. public sector a right-to-work sector in which public sector unions will only be financially supported by union members. As such, this is arguably the most significant Supreme Court ruling affecting labor relations in a long time. It is also a highly-charged decision because Janus and related cases have been funded by conservative political groups seeking to weaken the labor movement as a counterweight to Republicans in the political arena. Indeed, President Trump’s tweet in support of the ruling boasted “Big loss for the coffers of the Democrats!”:

So this case is about much more than individual free speech. But will it be successful in weakening the labor movement?

In the short-term, Janus is likely to reduce the financial strength of public sector labor unions in non-right-to-work states (agency fees were already prohibited in right-to-work states) as nonmembers stop paying dues. Labor unions might also have to spend more time and money fighting additional lawsuits that will likely be filed by conservative groups seeking to get previously-paid agency fee amounts returned to workers. But it might not be all bad news for organized labor.

Some states might take legislative steps to lessen the impact of the Janus ruling. Possibilities include not requiring unions to represent nonmembers in grievance hearings; allowing unions to charge nonmembers for specific services such as grievance representation or arbitration; giving unions time during new employee orientation to meet new workers; making it difficult for anti-group workers to contact workers; and giving union members paid release time to recruit others into the union. It might also be legal for public sector unions to negotiate an agency fee arrangement that includes an opt-out clause allowing objectors to donate their fee to a charity.

At an even more fundamental level, recall that the Janus decision relies on elevating collective bargaining to a level of public speech that is entitled to constitutional protection. Ironically, then, this could bring new levels of legal protection to public sector collective bargaining. For example, state laws that restrict collective bargaining to narrow occupations or prohibit it altogether might be now be unconstitutional violations of free speech. Attempts to legislate further limitations on public sector bargaining, as in the case of Wisconsin, could also be challenged on this same basis. These issues will take years to work through the legal system, however.

So without waiting for favorable legislative or legal action, what can the labor movement do? The labor movement has had several years to prepare for this kind of ruling, and the primary response is to focus on internal organizing. This emphasizes relationship-building with bargaining unit members so that workers feel that they are a necessary part of a vibrant organization that effectively represents their interests. When this is successfully, not only will workers join their union and pay dues, but they will also be more engaged which further creates a more dynamic organization. Janus might also contribute to a feeling among public sector workers that they are under attack, making them receptive to collective action, as was demonstrated earlier this year in the statewide teacher strikes in West Virginia, Oklahoma, and Arizona. So there is the distinct possibility that the labor movement ends up stronger than it was before the Janus decision.

Does Labor Law Protect Protesting NFL Players? It's Probably a Hail Mary

The raging controversy over the kneeling by NFL players during the playing of the national anthem took yet another turn recently, this time with labor law in the spotlight. Specifically, there has been publicity and press over the possibility that the National Labor Relations Act (NLRA) protects protesting players against being fired or other reprisals for their actions. Perhaps most notably, the New York Times published an article tree days ago with the headline "N.F.L. Players May Have an Ally in Their Protests: Labor Law." But just like a Hail Mary pass by a desperate football team as time runs out, I think this has low odds of success.

The classic applications of the NLRA pertain to situations involving labor unions, including workers trying to form a union, unions and companies bargaining contracts, and strikes by unionized workers. But as I have blogged about in at least one previous entry, the NLRA’s protections are not limited to situations involving formal union actions. Rather, the NLRA more fundamentally protects collective efforts by workers to improve their work situations. This is the relevance of the NLRA in this situation because even though the NFL players are unionized, their protest actions during the national anthem are not in the context of formal union activities like forming a union or bargaining a contract.

In this context, the New York Times article correctly indicated that “To be protected under federal labor law, an employee’s action must be conducted in concert with co-workers, it must address an issue of relevance to their job, and it must be carried out using appropriate means.” Given the widespread nature of the protests, Test #1 (conducted with co-workers) is satisfied. But unlike the experts quoted in the article, I’m skeptical that the remaining two tests are satisfied.

Test #2: addressing a job-relevant issue. The NLRA seeks to protect workers who join together to improve their wages, hours, and terms and conditions of employment. This has been interpreted in broad terms, including prohibiting employers from preventing employees from sharing their salary information with each other. Political activities are included in these protections, but only when those activities are sufficiently connected to employment conditions. To date, the NFL player protests have been about social justice, police brutality, and inequality. Obviously these are important issues, and I applaud the players’ stands, but these are not issues that are connected to their employment. [With that said, if the tenor of the protests shifts, for example, to expressing solidarity with a player who was reprimanded for protesting, then that solidarity action would fit within the scope of the NLRA. Unfortunately, the implication is that the players would have greater protections under labor law if their actions were more selfish (I guess the NLRA is very American after all), but based on Test #3 this still might not be enough to protect them in this case.]

Test #3: conducted in an appropriate way. It’s important to remember that the NLRA’s protections are not unlimited. Rather, the law’s key challenge is balancing workers’ and employers’ rights and interests (hence the title of my textbook, Labor Relations: Striking a Balance). So actions that harm an employer’s business are not necessarily protected. In classic doctrine, workers can be prohibited from talking about unions or wearing buttons if this disrupts the employer’s business by undermining efficiency and discipline, by affecting customers, or by harming its public image. Presumably the NFL could argue that the protests are harming its image and business. The burden of proof would be on the NFL so it’s not clear which way a legal ruling would go, but my point is that it’s certainly not clear that labor law is on the players’ side.

Adding to this, insubordination is not protected by the NLRA. Suppose the NFL tried enforcing a policy of standing for the national anthem. We could then see a continued protest as a protest against this work-related rule rather than as a political protest. Under Test #2, this is now more germane to their employment. That's the good news, in terms of this labor law analysis. But the bad news for the players is that refusing to stand for the national anthem in protest to a requirement that they do so would likely amount to unprotected insubordination. This would be a situation where players refuse to obey this one policy while complying with other policies (e.g., playing the game!)--that is, the players could be seen as selectively refusing to follow managerial directives that they dislike while complying with other directives. Labor law protects workers' solidarity actions, but it doesn't give them the right to pick and choose which managerial directives to follow and which to ignore. So this would likely be a case of (unprotected) insubordination than of (protected) collective protest. 

In closing, it’s great that labor law is being discussed in this context. Labor law applies to many more situations than is commonly believed, so anything that raises awareness is a good thing. Also, I don’t intend this as a criticism of the players who are protesting. I applaud their desire to raise difficult questions and seek social justice. But for better or worse, I think the extent to which labor law might provide protections in this particular case has been overstated in the media. Labor law can assist workers in many situations, but this might not be one of them. 

Minnesota Legislature: Respect U of M Contingent Faculty By Letting Them Decide Whether or Not to Unionize

Whether a group of employees wants to form a union to represent them in collective bargaining is a decision that those employees should be entitled to make. Unfortunately, contingent faculty (non-tenure-track instructors, lecturers, and teaching specialists) at the University of Minnesota will likely not get to make that decision themselves. Rather, the Minnesota State Legislature effectively prevented them from being able to make this decision when it enacted an unnecessary provision in state law over 35 years ago. In the wake of a state appeals court ruling earlier this month upholding this strange legislative provision, it’s time for the legislature to correct its earlier mistake and repeal this provision.

Perhaps some background is needed. When some employees want to form a union, an appropriate bargaining unit needs to be defined in order to specify exactly what positions would be represented by a union if an organizing drive is successful. Standard practice is for the employees or their desired representative (a specific labor union) to initially propose this definition. If an employer objects and prefers a broader or narrower definition, then a neutral, expert governmental agency investigates and determines the exact definition of the appropriate bargaining unit based on input and evidence. This is exactly what happens in the U.S. private sector (with the National Labor Relations Board empowered by federal law to handle unit determination questions based on its judgement of which employees share a “community of interest”), and, as far as I can tell, in almost all public sector jurisdictions in the United States (for example, see South Dakota's Public Employment Labor Relations Act section 3-18-4 or Iowa's Public Employment Relations Act section 20.13).

When the Minnesota Public Employment Labor Relations Act (PELRA) was first enacted in 1971, this standard practice was adopted by empowering the Bureau of Mediation Services (BMS) to determine appropriate bargaining units when a public sector employer objects to the workers’ proposed definition. For state agencies, the law contained a proviso that an appropriate bargaining unit should consist of “all the employees under the same appointing Authority” unless “professional, geographical or other considerations affecting employment relations clearly require” some other appropriate unit (section 179.74). As is common elsewhere, there were no special provisions for the University of Minnesota, school districts, or others covered by PELRA.

In 1980, however, the Minnesota State Legislature deviated from common practice by changing PELRA to specify 16 (now 17) state bargaining units and 12 (now 13) University of Minnesota bargaining units (see Minnesota Session Laws 1980 c 617 s 40) (in later years, court units were also specified). This has long puzzled me, especially because it runs contrary to standard practice, and it is likely rooted in a desire to impose operational stability or convenience by limiting the number of bargaining units that a state agency or the University of Minnesota has to deal with. But the effect is to impose an outdated occupational structure on contemporary realities and to deny employees their rights to form unions and engage in collective bargaining. This is clearly not the way to balance efficiency, equity, and voice—a principle that I have long advocated as the key objective of work-related public policy (also see this, and this).

Getting back to the plight of contingent faculty at the University of Minnesota, the way the process should have worked was for BMS to have had the discretion to use its expert judgement decide whether it was best to include contingent faculty with tenure-track faculty, or to define two separate units, based on input, hearings, and the facts of this particular situation at this particular time. But with the unit definitions pre-specified by state law, contingent faculty are not allowed to have their own unit, and the state appeals court ruled that they are not part of the tenure-track unit. So this ruling means that contingent faculty are included in a catch-all unit of all professional and administrative employees at the University of Minnesota. The diversity of this unit is hard to grasp. By one count, there are over 300 job titles in it, presumably many more than in 1980. By my reckoning, this will kill the contingent faculty union drive because  in order to unionize they'll need to get a majority of accountants, cartographers, athletic trainers, and numerous others to all vote for a single union, which is close to impossible. It strains credulity to think that this diversity (a) represents a community of interest for these employee groups and (b) serves anyone’s interests except the administration of the University of Minnesota because it makes unionization almost impossible (which might explain why the administration spent 18 months trying to get this ruling).  

The processes of labor relations work best when they are allowed to be dynamic and to adapt to changing situations by those directly involved. Collective bargaining has proven to be adaptable to many industries and occupations, and can handle economic, technological, and other changes when labor and management negotiators have the freedom to determine the scope and tenor of their negotiations. Similarly, determining appropriate bargaining units should be a flexible process in which a neutral, expert agency has the ability to adjust to changing trends based on input from the relevant parties, hearings, and evidence about the particular realities of each case. The world of work has changed significantly since 1980, and it’s silly to think that even a well-intentioned legislative intervention in 1980 is still the best approach today (exhibit A: the tremendous rise of contingent faculty at the University of Minnesota).

But there is an easy solution: simply repeal sections 179A.10 Subd. 2 (defining state units), 179A.101 Subd. 1 (defining court units), and 179A.11 Subd. 1 (defining University of Minnesota units). No language is needed to replace these unnecessary passages. In their absence, the authority to determine appropriate bargaining units on a case-by-case basis will revert back to BMS under sections 179A.04 Subd. 2 and 179A.09, and common sense practice found throughout the rest of the state and most of the country will be restored. And contingent faculty at the University of Minnesota, and perhaps other employee groups, too, will be able to act like the autonomous, dignified human beings that they are and make a decision whether to unionize or not.

Thoughts on Uber and Its Psychological "Tricks"

Earlier this month, a New York Times article “How Uber Uses Psychological Tricks to Push Its Drivers’ Buttons” received a lot of publicity for revealing how Uber is using “behavioral science to manipulate [drivers] in the service of its corporate growth.” A company trying to get workers to act in the interests of the organization? Shocking.

The point of managing workers is to get them to do things that benefit the organization that is issuing their paychecks (or not even issuing paychecks as with diverse forms of slavery and unfree labor throughout history). I can’t be the only one tired of an “everything in the sharing economy is new” mindset. Sure, some of the specific tools might be different in the sharing economy, but the tools for managing workers have always been changing. In the industrial revolution, workers were organized together into factories to be watched more effectively. The famous Hawthorne experiments in the 1920s uncovered the importance of social factors in shaping worker productivity. I’m sure there are examples of various workplaces with real-time information on production goals displayed on a chalkboard for all to see long before there were LED or smartphone displays.

But back to the New York Times article: Good news for industrial relations, bad news for human resources. Why good news for industrial relations? “Underlying the tension was the fact that Uber’s interests and those of drivers are at odds on some level.” There you have it, a central industrial relations premise that employers and workers have some conflicting goals. And when employers have the upper hand (“Uber is continuing apace in its struggle to wield the upper hand with drivers”), we need to take seriously the need for various mechanisms for looking out for workers' interests and well-being, whether through unionization, laws, or other supports. More on this in a minute.

And why bad news for human resources? An MIT Technology Review article followed up the New York Times story with its own headline: “Uber Is Engaged in Psychological Warfare with Its Drivers.” Here is part of what's labeled as psychological warfare: “To stem that tide [of many new drivers leaving before completing 25 rides], Uber officials in some cities began experimenting with simple encouragement: You’re almost halfway there, congratulations!” That’s right, Uber is “exploiting” that well-known human “weakness” of responding to encouragement toward a concrete goal. When encouragement is seen as manipulation, that can’t be good for human resources.

This begs the question as to what people think human resources should be doing. Do we want human resources to simply be an administrative function that hires and pays people? Human resources can and should be doing more. For at least a century, the leading edge of human resources has been trying to take what we know about human behavior (at that time) to find hopefully win-win ways to benefit employees and employers. Can ethical lines be crossed? Certainly. But the principle of using the science of human behavior--rooted in economics, psychology, sociology, and beyond--to design human resources policies that create mutual gain is longstanding and worthy. 

I’m not intending to be an apologist for Uber. The rise of Uber and other sharing economy arrangements raise serious issues—too many to address here. As just one example, an academic paper “The Taking Economy: Uber, Information, and Power” by Ryan Calo and Alex Rosenblat discusses a number of ways in which Uber could potentially exploit its drivers. My interpretation of many of these is that they boil down to intentional or unintentional wage theft. For example, a driver may think they accepted 100% of ride requests, but bugs or manipulation may lead Uber to report a lower number, leading to negative consequences for the driver. Or a driver may wait the required 5 minutes to get a cancellation fee, but Uber doesn’t pay because its data shows a lower waiting time, again either due to intentional programming features or unintentional problems with connectivity and the like.

So how to address serious issues that arise out of the gig economy? Meaningful debates over the role of behavioral science in shaping managerial practices should be welcomed. Though rhetoric around "psychological warfare" probably isn't very helpful. Additionally, everyone can probably agree that Uber drivers should be truly free to sign off when they want, though there are different perceptions of what "truly free" means in this context. 

And is this freedom enough? Certainly not for issues like wage theft that truly reflect unequal power and asymmetric information (what did you expect an industrial relations scholar to say??). Calo and Rosenblat argue for updating consumer protection laws for the digital age. That might be a good idea, but from an industrial relations perspective, we also should be talking about updating labor law. Rather than relying on government regulation to specify standards, identify violations, and remedy them, let’s figure out ways to empower workers—broadly defined to include Uber drivers and many others in the gig and contracting economy. Then they can act collectively with adequate power to give a meaningful voice to the material, psychological, social, and other concerns they identify as the most pressing in their own particular work arrangements.

And the University of Minnesota faculty organizing drive drags on, or, bananas aren’t apples, but they are more like apples than like airplanes

When I taught labor relations last winter, the union organizing drive among University of Minnesota faculty was a very timely topic. After having been away for the summer, some of the students from that class asked whether faculty were unionized yet. But the answer brings to life one of the realities of union organizing in the United States—it’s a slow process. SEIU Local 284 filed a petition seeking an election with the State of Minnesota’s Bureau of Mediation Services (BMS) on January 20, 2016. Over 34 weeks later, an election is not yet in sight.

In any union representation election, the election unit needs to be defined. That is, what jobs are included and excluded from what will be the bargaining unit if the union wins. This definition is initially presented by the union when requesting an election, but an employer can object on the basis of there not being a “community of interest” among all of the included workers. A major sticking point in the faculty organizing drive is whether the bargaining unit should only include tenured and tenure-track faculty (the University’s position) or should also include full-time and part-time instructors (“contract faculty”) (the union’s position). In other words, the University asserts that regular faculty and contract faculty do not share a community of interest whereas the union argues that they do. Undoubtedly, regular and contract faculty have things in common (an educational focus, instruction, academic achievement as a position requirement) and not (tenure versus annual contracts, sharply different degrees of research responsibilities). So where to draw the line?

Unfortunately, an already-slow process has been made worse by the curious choice of the Minnesota legislature to enshrine the University of Minnesota bargaining units in state law over 30 years ago. It’s clear that tenured and tenure-track faculty are in what the law defines as Unit 8. But what about contract faculty? The University claimed that they are in the “Academic Professional and Administrative Staff” unit (Unit 11) by law, so there is nothing for BMS to decide. The union claimed that the law is so old that contract faculty are new positions that need to be classified by BMS. Over multiple objections by the University, BMS agreed with the union. So a lengthy hearing was held last spring, and BMS finally issued its ruling earlier this week.

In its ruling, BMS largely sided with the union and placed contract faculty into Unit 8 along with regular faculty (although extension faculty were excluded because they are not located on the Twin Cities campus). So unless the University is successful in an appeal, an election will occur some day and will uniquely include regular and contract faculty in the same unit. But that’s still a ways off because (a) the University will probably appeal, and (b) there still needs to be more hearings over excluding supervisors (which could include me as department chair) and determining whether instructors who teach minimal classes are real employees and therefore included. So again, union organizing can often be a lengthy process.

So what about the BMS ruling? How could they put regular and contract faculty together? If this occurred in the private sector, my guess is that they wouldn't have been placed together because they would have been seen as having distinct communities of interest. But in the private sector (and probably in most states), nothing is pre-specified so the National Labor Relations Board (NLRB) could put them together, or keep them separate. What the University seemingly failed to appreciate in this case is that Minnesota law has already limited the bargaining units. So BMS really wasn't deciding whether faculty and instructors go together, it was really deciding whether instructors go with faculty or go with the “everything else leftover” professional and administrative unit that also includes accountants, cartographers, athletic trainers, and over 300 other job titles. The university kept arguing that instructors aren’t faculty. But BMS ruled that they are even less like accountants and athletic trainers. Or the way I’ve bastardized it, bananas aren’t apples, but they are more like apples than like airplanes.

So whether or not this ruling makes it more or less likely that the faculty will vote to unionize remains to be seen. And if the faculty do unionize, it will undoubtedly be an interesting case study of how to include regular and contract faculty interests in bargaining and representation. In the meantime, the events of this year clearly illustrate how this can be a drawn-out process. And at a broader level, this also illustrates why legislators should be careful not to overly prescribe matters and to instead craft laws in ways that are flexible and adaptable.

The Unique CTUL-Target Partnership: Filling a Vacuum

Last week I had the pleasure of attending a roundtable event sponsored by the Workers Lab that focused on the CTUL-Target partnership. CTUL (Centro de Trabajadores Unidos en Lucha which translates to The Center of Workers United in Struggle) is a Minneapolis worker center that, to quote from its own mission statement, “organizes low-wage workers from across the Twin Cities to develop leadership and educate one another to build power and lead the struggle for fair wages, better working conditions, basic respect, and a voice in our workplaces.” Worker centers have emerged in many cities over the past decade to try to improve working conditions outside the parameters of traditional labor law and traditional labor unionism, particularly for workers who fall in gray areas of labor law. For example, the cleaning of retail stores is commonly contracted out to third-party contractors so it is difficult to establish a collective bargaining relationship with the retail chain because technically the janitors do not work for the retailer.

As the result of a fortuitous set of factors, CTUL and Target have formed a unique worker center-corporate partnership that is highlighted by the development and adoption of Target’s Responsible Contractor Policy. There are many aspects of this story worth telling, and CTUL’s website has a lot of information. At a high level, I think it’s a fascinating model. It’s not abdication to the vagaries of the market or one side or the other finding a way to dictate its agenda. It’s not a central authority trying to find one-size-fits-all solutions. Rather, it’s a way of creating dialogue among the parties most affected, finding common interests, and striking a balance on challenging issues for which they have conflicting goals. In other words, it’s a new institutional way to create what I’ve called “Employment with a Human Face” by balancing central employer and employee objectives (such as efficiency, equity, and voice).

As I listened to representatives of CTUL, Target, and TakeAction Minnesota describe their roles in this partnership, two things struck me. One, to have a successful partnership requires not just shifting power so that low-paid, immigrant and minority workers have some influence, but it also requires shifting mental models and mindsets. For this to be a productive partnership, Target had to shift from a defensive posture that saw CTUL’s criticism of abusive working conditions by Target’s janitorial services contractors as an attack, to an opportunity for listening, understanding, and ultimately, valuable community engagement. And CTUL had to be willing to adopt a partnership rather than conflictual mindset, too. As I’ve often written and taught about, ideas are important.

The other broad theme that struck me comes down to one word: vacuum. By contracting out its janitorial work, Target had essentially created a legal vacuum where it’s difficult for workers to effectively enforce their legal rights—the avoidance of wage theft, the presence of a safe workplace and workers’ compensation coverage, and the ability to unionize if desired. CTUL essentially filled this vacuum and shifted Target’s terrain of compliance. Because of the vacuum, Target didn’t have a traditional legal compliance concern and could ignore the janitor’s plight, but CTUL raised the specter of negative publicity for Target. So while lawsuits were perhaps not a concern (the traditional focus of corporate “compliance”), harms to the corporate brand became a concern. And Target responded. But this was prompted by a legal vacuum that in simpler times would have been filled by the enforcement of employment and labor law.

Another aspect to this vacuum was connected to remarks by TakeAction Minnesota, a community organizing coalition of progressive organizations. TakeAction Minnesota said that it had learned from CTUL that transformational shifts aren’t about a single issue win or just getting to the table, they are about shifting power, dealing directly with employers, getting a deal with enforcement mechanisms, and recognizing that there won’t be agreement on every single issue. Wait a minute, this is classic industrial relations thinking, and labor law promotes labor unions for exactly these reasons. But for whatever reason, unions are unable to be successful in certain sectors. A vacuum has been created, and it was striking to me that without even realizing the parallel, TakeAction Minnesota was highlighting exactly what unions used to do. In the areas of the economy with such vacuums, new organizations like CTUL and new partnerships like the one with Target are needed in order to create employment with a human face, and to create employment relationships that are WIN-WIN-WIN: relationships that serve workers and their families (win #1), organizations (win #2), and society (win #3).

Update: On October, 13, 2016, CTUL announced that 600 retail janitors who clean Target, Macy’s and Best Buy stores in the Twin Cities would begin collective bargaining with the janitorial contractors. CTUL's campaign led the contractors to agree to a trigger mechanism in which they would bargain a contract after 60% of the janitors in the area's 300 big box retail stores unionized, a threshold that has now been reached. This story has been covered by the StarTribune, The Guardian, and Workday Minnesota.  

Don't quit, strike

Last month, about 150 employees at a Cargill meat processing plant in Colorado were fired for not showing up to work for three days (StarTribune, January 8, 2016). The workers were protesting what they believed was a change in Cargill policy not allowing workers to take a prayer break. Religious accommodation, and more generally, diversity, issues are challenging and important in today’s workplace, and these challenges are made more difficult by cultural and language differences. Cargill, in fact, says that this was a misunderstanding. Without intending to downplay these important issues, I think this case also serves as a reminder of a different kind of misunderstanding—the misunderstanding of labor law as only applying to unionized situations.

When there are conflicts over prayer breaks, being paid for set-up time, cuts in health care benefits, or any other of the many difficult issues in the modern workplace, nonunion workers in the private sector should remember that they are covered by labor law in the form of the National Labor Relations Act (NLRA). A common misunderstanding is that the NLRA only applies to workers who are trying to unionize, collectively bargain a union contract, strike in support of those negotiations, or other activities that involve formal union activity. The NLRA does indeed cover those situations. But more fundamentally, the NLRA seeks to protect workers who band together to enhance their collective power and voice in determining wages, hours, and terms and conditions of employment. Why? Because the NLRA is premised on a belief that the employment relationship is an unequal one, and it will work better for all if workers act together rather than individually to better balance corporate power.

So collective activities—that only require two workers—to have a voice over wages, hours, and terms and conditions of employment are protected, which means that workers cannot be discharged, disciplined, or other discriminated against for engaging in these activities. So when multiple workers feel aggrieved by prayer break policies or any other work-related issue, they should remember these protections.

First, this means that you have the right to talk with co-workers about these issues (including your wage or salary)--not necessarily during paid work time or in areas that disturb customers; but during breaks in private areas. Second, this means you should to express your voice collectively rather than individually. Talk with managers as a group rather than as individuals. Third, if things are so bad that you are willing to quit, you should instead think about going on strike. As a group, you can collectively refuse to work until a certain policy is changed. The company doesn’t have to pay you, or give in to your demands. But it cannot fire you for this protected activity. You can be replaced which means that you are not immediately entitled to get your job back if you end your protest and someone else has filled your job. But you wouldn’t be entitled to this if you quit either. However, by going on strike instead of quitting, you are entitled to your job back once there are job openings. If you quit, you are at the mercy of the employer if there are job vacancies.

Returning to the Fort Morgan Cargill case, this was reported in the media with no mention of union representation. So I thought these workers should have struck instead of quit, and they'd already have their jobs back by now. However, it turns out that these workers are actually represented by the Teamsters and covered by a collective bargaining agreement. Like almost all other U.S. contracts, it contains a no-strike provision banning strikes during the life of the contract. So the Fort Morgan workers could be fired for striking. Instead they should have union representation and a grievance procedure to help them. Unfortunately, those supports seem to have failed in this particular case. That’s a story for another day.